April 2010

TDSAT JUDGEMENTS

TDSAT REJECTS MSO'S INVOICES

Hathway Bhawani Cabletel & Datacom Ltd.
Petitioner

Vs.

Swastik Cable
Respondent

THE DISPUTE

The petitioner (Hathway Bhawani) is an MSO. The respondent is a cable operator - a proprietary concern of Mr.Vinod T. Patil.

Both parties agree that Swastik Cable received signals from Hathway Bhawani. However, Hathway Bhawani claimed that there was a written agreement, Swastik Cable, there was only a verbal agreement. Hathway Bhawani contended that despite supply of signals the respondent had not been making any payments although monthly invoices were regularly raised. Swastik Cable denies and disputes the receipt of the invoices.

Hathway Bhawani filed this petition, asking for a sum of Rs.15,55,547. towards the cable TV feed signals charges upto October, 2007 with interest.

THE HEARINGS

Both parties filed a large number of documents, and examined one witness each in support of their respective cases.

Swastic Cable maintained that it had received signals from Hathway Bhavani only upto December 2004. Swastik also contended that although the agreed rate of subscription fee was Rs.10,000 per month for 100 points, the petitioner had been issuing inconsistent bills for a much higher amount.

From January 2005 to Dec 2006 Swastic received its signals from another MSO, namely, M/s Shri Sai Network Pvt.Ltd.

From Jan 2007 Swastic took signals from Wire & Wireless India Ltd.

KEY ISSUES

The principal issues before the TDSAT were:

(i) Whether the parties had entered into an agreement in writing?

(ii) Whether Swastik Cable had taken signals from Bhawani Hathway upto October, 2007 or till December, 2004?

(iii) Whether the amount of subscription fee was fixed at Rs. 10,000 per month.

Hathway Bhawani produced a written agreement, which it claimed had been entered into by and between the parties on or about 01.03.2001.

Mr Kuldeep Puri - Managing Director of Hathway Bhawani, professed knowledge in respect of all the transactions entered into by and between the parties. However, in his cross examination said "This matter is more than 7 to 8 years old and I cannot exactly recall as to which brother had signed." Hence Hathway Bhavani could not prove that the document they had tabled was indeed signed by Swastik Cable's proprietor - Mr Vinod T. Patil.

Also, Mr Puri stated in his cross examination that he did not remember whether Swastik cable had paid Rs.10,000 per month to Bhawani Hathway, or whether payments were made upto August, 2004.

Swastik Cable pointed out that the first invoice dated 01.11.2003 was for Rs. 10,000. However, dispute arose from October, 2004 when Hathway Bhavani not only invoiced 120 points at Rs. 12,000 per month, but also listed an outstanding of Rs. 36,000.

Swastik further put on record an invoice dated 01.11.2004 for 500 points and a monthly charge of Rs 50,000. The invoice also indicated an outstanding of Rs. 21,081. However, the Dec 2004 invoice showed only 120 and a bill for Rs. 12,000. Hathway Bhawani could not explain the varying invoice amounts. Hathway Bhawani also could not prove its claim that Swastik Cable had refused to accept its invoices. Swastik Cable denied receiving or returning any such invoices.

The TDSAT believed that the burden of proof lay with Hathway Bhavani, to prove its claims. The TDSAT pointed out that Justice Y.V. Chandrachud's Law of Evidence sates:

"The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable. Moreover, it is but reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove his own case."

Based on the above, the TDSAT ruled in favour of Swastik Cable, completely rejecting Hathway Bhavani's claim. The TDSAT ruled "Keeping in view the facts and circumstances of this case, the petitioner has miserably failed to prove its case. Only because the petitioner had been sending invoices which might have been prepared mechanically, the same by itself does not advance the case of the petitioner. This petition is dismissed with costs." n